122 Cal. 665 | Cal. | 1898
This is an appeal by plaintiff from a jndg
The action was brought upon a promissory note, in the usual form, for five thousand dollars and interest, dated September 26, 1890, payable one year after date to plaintiffs or order, and sigaed by defendants. In their answer defendants, after some denials and averments not necessary to be here considered, allege that the note sued on was given solely as security for the payment of the principal and interest of a certain other note for eighty-two thousand five hundred dollars and interest, to be made by one John Herd, Jr., to the plaintiff, and which note was so made by Herd to plaintiff, dated October 31, 1890, and payable on or before October 1, 1894, which note was secured by mortgage given by Herd to plaintiff upon certain lands; and that the plaintiff afterward extended the time for the payment of said note for a period of more than two years, and that by such extension defendants were released and exonerated from the payment of the note here sued on—they by signing said note becoming merely sureties for the payment of said note of eighty-two' thousand five hundred dollars. The court found that the note sued on was signed by defendants merely as sureties, that the plaintiff did extend the”time for the payment of the said note and mortgage, and that thereby the defendants were exonerated and their obligation as such sureties satisfied and extinguished.
The evidence was sufficient to justify the said findings of the court. At the time the note sued on was signed by defendants there was also a written agreement made by the plaintiff and the defendants to the effect that the note should be placed in escrow with the Bank of Visalia for so long as the annual interest on the eighty-two thousand five hundred dollar note should be paid, and that if the said interest should not be paid, “or if at the maturity of said last-named note full principal and interest due thereon be not paid, then said Bank of Visalia shall in either event deliver said first-named note to John Tuohy, or order, or otherwise to be returned to said Woods Brothers.” This written agreement, together with other testimony, warranted the court in finding that defendants, by signing said note, became merely sureties as aforesaid. There was also sufficient evidence to warrant the finding that plaintiff extended the payment oi
Appellant contends that as respondents aver in their answer that the extension was made without their consent, and, as there was no evidence introduced touching their consent, therefore they cannot take advantage of the extension because the burden was on them to show that it was made without their consent. Appellant contends that every “necessary” averment in the pleadings must be proven. This is not universally true, because there are some necessary formal averments which need not be proven; but the averment in the answer that the extension was made without respondent’s consent was an entirely unnecessary averment. When a surety has shown that the contract as to which he became surety has been changed, he has then shown that there has been an attempt to make him liable on a new and different contract; and the burden is then upon the other party to show that the surety has consented to the new contract. This principle is aptly stated in Stowell v. Goodenow, 31 Me. 540. In
The finding of the court that the respondents signed the note sued on as sureties “for the payment during the said term of five years of the interest on said note of eighty-two thousand five hundred dollars,” if construed as meaning that they were sureties for the interest only, and not for the principal, is inconsistent with the averment in the answer that the note sued on was intended to be a security for the interest and principal of the note ■of eighty-two thousand five hundred dollars; but that finding, and the other finding that said interest had been fully paid, are immaterial, and in no way affect the correctness of the judgment.
To what extent the respondents were injured by the extension is not a legitimate subject of inquiry in this action. (Driscoll v. Winters, 122 Cal. 65.)
The judgment and order appealed from are affirmed.
Henshaw, J., and Temple; J., concurred.
Hearing in Bank denied.